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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1572 OF 2012

(Arising out of S.L.P. (Criminal) No. 6468 of 2012)

Manubhai Ratilal Patel Tr. Ushaben ... Appellant

Versus

State of Gujarat & Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The appellant was an accused in FIR No. I-CR No. 56/12

registered at Pethapur Police Station on 20

th

of June, 2012 for

offences punishable under Sections 467, 468, 471, 409 and

114 of the Indian Penal Code (for short ‘the IPC’). Challenging

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the registration of the FIR and the investigation, the accused-

appellant (hereinafter referred to as “the accused”) preferred

Criminal Miscellaneous Application No. 10303 of 2012 on

11.7.2012 under Section 482 of the Code of Criminal

Procedure (for brevity “the Code”) in the High Court of Gujarat

at Ahmedabad for quashing of the FIR. A prayer was also

made for stay of further proceedings in respect of the

investigation of I-CR No. 56/12.

3.The unfurling of factual scenario further shows that the

matter was taken up on 17.7.2012 and the High Court issued

notice and fixed the returnable date on 7.8.2012 and allowed

the interim relief in terms of prayer No. (C) which pertained to

stay of further proceedings in respect of the investigation.

4.The exposition of facts reveals that the accused was

arrested on 16.7.2012 and produced before the learned

Judicial Magistrate First Class, Gandhinagar at 4.00 p.m. on

17.7.2012. The police prayed for remand of the accused to

police custody which was granted by the learned Magistrate

upto 2.00 p.m. on 19.7.2012. On 18.7.2012, it was brought to

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the notice of the concerned investigation agency about the stay

order passed by the High Court on 17.7.2012 and prayer was

made not to proceed further with the investigation in

obedience to the order passed by the High Court. It is

pertinent to note that an application for regular bail under

Section 439 of the Code was filed on 19.7.2012 before the

learned Magistrate. Apart from other grounds, it was

highlighted that when a petition was pending before the High

Court for quashment of the First Information Report and a

stay order had been passed pertaining to further investigation,

the detention was illegal and hence, the accused was entitled

to be admitted to bail.

5.The learned Magistrate dwelled upon the allegations

made against the accused and declined to release him on bail

regard being had to the nature of offences. Dealing with the

order passed by the High Court, he observed that the order

passed by the Hon’ble High Court pertained to stay of further

investigation although no investigation was required to be

carried out during judicial custody and, as the accused was

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involved in commission of grievous offences, it would not be

just to enlarge him on bail.

6.Being aggrieved by the aforesaid order, the accused

preferred Criminal Miscellaneous Application No. 539 of 2012

in the Court of learned Sessions Judge, Gandhinagar and also

prayed for grant of interim bail. The learned Sessions Judge

rejected the prayer for grant of interim bail and fixed the main

application for hearing on 24.7.2012.

7.Dissatisfied with the aforesaid orders, the accused

preferred a habeas corpus petition before the High Court of

Gujarat forming the subject matter of Special Criminal

Application No. 2207 of 2012. It was contended before the

High Court that since the investigation was stayed by the High

Court in exercise of power under Section 482 of the Code, the

learned Magistrate could not have exercised power under

Section 167(2) of the Code remanding the accused either to

police or judicial custody. It was submitted that the power of

the Magistrate remanding the accused to custody during the

course of investigation stood eclipsed by the order of stay

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passed by the High Court and, therefore, the detention was

absolutely illegal and non est in law. It was also urged that as

the detention of the accused was unlawful, a writ of habeas

corpus would lie and he deserved to be set at liberty forthwith

as long as the stay order was operative.

8.The aforesaid stand put forth by the learned counsel was

combated by the State contending, inter alia, that it could not

be said that there had been no investigation as arrest had

already taken place and hence, stay of further investigation

would not nullify the order of remand, be it a remand to police

custody or judicial custody. Highlighting the said stance, it

was propounded that the order of remand could not be treated

as impermissible warranting interference by the High Court in

exercise of jurisdiction of writ of habeas corpus.

9.The High Court adverted to the chronology of events and

held thus: -

“From the chronology of events as emerging

from the petition as well as affidavit-in-reply, it

is not in dispute that the arrest of the

petitioner was effected on 16/07/2012.

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Whereas the quashing petition came to be filed

on 17/07/2012 and the stay order was

granted on 17/07/2012 at about 04.30 p.m.

and the remand of the accused – petitioner to

police custody was granted on 17/07/2012 till

02.00 p.m. of 19/07/2012. It is also required

to be noted that order passed by learned JMFC

has not been challenged anywhere and has

attained finality. Thereafter, the order passed

by this Court in CRMA No. 10303 of 2012 has

been served on the Police authority on

17/07/2012 at 09.30 p.m. On the next day

i.e. on 18/07/2012, the Investigating Officer

seems to have informed learned JMFC about

the stay granted by the High Court and has

attended High Court in connection with

anticipatory bail application preferred by the

petitioner. It is also not the case of the

petitioner that after the service of order of stay,

any other investigation has been carried by the

Investigating Officer. On 19/07/2012 itself

the applicant preferred an application for bail

under Section 437 of the Code, which came to

be rejected and the accused was remanded to

judicial custody and as such the petitioner –

accused is in judicial custody as on now. It is

pertinent to note that the learned JMFC has

rightly observed in his order upon bail

application that the High Court has stayed

further investigation only.”

10.After so stating, the High Court dealt with the issue

whether the custody of the accused could be said to be illegal.

It was opined by the High Court that it was not possible to

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accept the stand that once the investigation was stayed, there

could not have been exercise of jurisdiction under Section

167(2) of the Code, for stay of investigation would not

eradicate the FIR or the investigation that had been already

carried out pursuant to lodging of FIR. It was further opined

that it was only an ad-interim order and if the stay order

would eventually be vacated or the quashing petition would

not be entertained, the investigation would be continued. The

High Court further observed that solely because the

investigation was stayed, it would not be apposite to say that

there was no investigation and the order passed by the learned

Magistrate was flawed.

11.Addressing to the issue of remand, the High Court opined

that the order of remand of the accused to custody could not

be said to be a part of the investigation and hence, the said

order was not in conflict with the order passed under Section

482 of the Code of Criminal Procedure in Criminal

Miscellaneous Application No. 10303 of 2012. Reference was

made to Section 2(h) of the Code which defines ‘investigation’

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and it was ruled that the order passed by the learned

Magistrate could not be termed as a part of the investigation.

Eventually, the High Court opined that it could not be held

that when the order was passed by the learned JMFC, there

was no investigation and, therefore, there was no force in the

argument that the learned JMFC could not have remanded the

accused in such a situation in exercise of powers under

Section 167 of the Code, and secondly, the act of the learned

JMFC remanding the accused to custody is a judicial act

which cannot be termed as part of the investigation and

cannot be considered to have been covered under the stay

granted by the High Court in CRMA No. 10303 of 2012. It was

further held that illegal or unauthorised detention or

confinement is a sine qua non for entertaining a petition for

writ of habeas corpus and the custody of the petitioner being

in pursuance of a judicial act, it could not be termed as illegal.

12.At this juncture, it is seemly to note that the appellant

had knocked at the doors of the High Court in a habeas

corpus petition. The writ of habeas corpus has always been

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given due signification as an effective method to ensure release

of the detained person from prison. In P. Ramanatha Aiyar’s

Law Lexicon (1997 edition), while defining “habeas corpus”,

apart from other aspects, the following has been stated: -

“The ancient prerogative writ of habeas corpus

takes its name from the two mandatory words

habeas. corpus, which it contained at the time

when it, in common with all forms of legal

process, was framed in Latin. The general

purpose of these writs, as their name

indicates, was to obtain the production of an

individual.”

13.In Secretary of State for Home Affairs v. O’Brien

1

, it

has been observed that it is perhaps the most important writ

known to the constitutional law of England affording as it does

a swift and imperative remedy in all cases of illegal restraint or

confinement. It is of immemorial antiquity, an instance of its

use occurring in the thirty third year of Edward I. It has

through the ages been jealously maintained by the courts of

law as a check upon the illegal usurpation of power by the

executive at the cost of liege.

1

(1923) AC 603 (609)

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14.In Ranjit Singh v. The State of Pepsu (now Punjab)

2

,

after referring to Greene v. Secretary of States for Home

Affairs

3

, this Court observed that the whole object of

proceedings for a writ of habeas corpus is to make them

expeditious, to keep them as free from technicality as possible

and to keep them as simple as possible. The Bench quoted

Lord Wright who, in Greene’s case, had stated thus:

“The incalculable value of Habeas Corpus is

that it enables the immediate determination of

the right to the appellant’s freedom.”

Emphasis was laid on the satisfaction of the court

relating to justifiability and legality of the custody.

15.In Kanu Sanyal v. District Magistrate, Darjeeling

and others

4

, it was laid down that the writ of habeas corpus

deals with the machinery of justice, not the substantive law.

The object of the writ is to secure release of a person who is

illegally restrained of his liberty.

2

AIR 1959 SC 843

3

1942 AC 284

4

AIR 1973 SC 2684

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16.Speaking about the importance of the writ of habeas

corpus, a two-Judge Bench, in Ummu Sabeena v. State of

Kerala and others

5

, has observed as follows: -

“…the writ of habeas corpus is the oldest writ

evolved by the common law of England to

protect the individual liberty against its

invasion in the hands of the executive or may

be also at the instance of private persons.

This principle of habeas corpus has been

incorporated in our constitutional law and we

are of the opinion that in a democratic republic

like India where Judges function under a

written Constitution and which has a chapter

on fundamental rights, to protect individual

liberty the Judges owe a duty to safeguard the

liberty not only of the citizens but also of all

persons within the territory of India. The most

effective way of doing the same is by way of

exercise of power by the Court by issuing a

writ of habeas corpus.”

In the said case, a reference was made to Halsbury’s Laws of

England, 4

th

Edn. Vol. 11, para 1454 to highlight that a writ of

habeas corpus is a writ of highest constitutional importance

being a remedy available to the lowliest citizen against the

most powerful authority.

5

(2011) 10 SCC 781

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17.Having stated about the significance of the writ of habeas

corpus as a weapon for protection of individual liberty through

judicial process, it is condign to refer to certain authorities to

appreciate how this Court has dwelled upon and expressed its

views pertaining to the legality of the order of detention,

especially that ensuing from the order of the court when an

accused is produced in custody before a Magistrate after

arrest. It is also worthy to note that the opinion of this Court

relating to the relevant stage of delineation for the purpose of

adjudicating the legality of the order of detention is of

immense importance for the present case.

18.In Col. Dr. B. Ramachandra Rao v. The State of

Orissa and others

6

, it was opined that a writ of habeas

corpus is not granted where a person is committed to jail

custody by a competent court by an order which prima facie

does not appear to be without jurisdiction or wholly illegal.

6

AIR 1971 SC 2197

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19.In Re. Madhu Limaye and others

7

, the Court referred to

the decision in Ram Narayan Singh v. State of Delhi

8

and

opined that the court must have regard to the legality or

otherwise of the detention at the time of return.

20.In Kanu Sanyal v. Dist. Magistrate, Darjeeling and

others

9

, contentions were raised to the effect that the initial

detention of the petitioner in District Jail, Darjeeling was

illegal because he was detained without being informed of the

grounds for his arrest as required under clause (i) of Article 22

of the Constitution and that the Sub-Divisional Magistrate,

Darjeeling had no jurisdiction to try and, therefore, he could

not authorise the detention of the petitioner under Section 167

of the Code. The two-Judge Bench adverted to the aforesaid

aspects and referred to the earlier decisions in Naranjan

Singh v. State of Punjab

10

, Ram Narain Singh (supra), B.R.

Rao (Supra) and Talib Hussain v. State of Jammu and

Kashmir

11

and noted that three views had been taken by this

7

AIR 1969 SC 1014

8

AIR 1953 SC 277

9

AIR 1974 SC 510

10

AIR 1952 SC 106

11

AIR 1971 SC 62

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Court at various times pertaining to the relevant date to

determine the justifiability of the detention and opined as

follows:-

“This Court speaking through Wanchoo, J.

(as he then was) said in A.K. Gopalan v.

Government of India; [(1966) 2 SCR 427 =

(AIR 1966 SC 816)]. “It is well settled that

in dealing with the petition for habeas

corpus the Court is to see whether the

detention on the date on which the

application is made to the Court is legal, if

nothing more has intervened between the

date of the application and the date of the

hearing”. In two early decisions of this

Court, however, namely, Naranjan Singh v.

State of Punjab, [(1952 SCR 395) = AIR

1952 SC 106)] and Ram Narain Singh v.

State of Delhi, [(1953 SCR 652) = (AIR 1953

SC 277)] a slightly different view was

expressed and that view was reiterated by

this Court in B.R. Rao v. State of Orissa

(AIR 1971 SC 2197) where it was said; “In

habeas corpus the Court is to have regard

to the legality or otherwise of the detention

at the time of the return and not with

reference to the institution of the

proceedings.” And yet in another decision of

this Court in Talib Husain v. State of

Jammu & Kashmir (AIR 1971 SC 62) Mr.

Justice Dua, sitting as a Single Judge,

presumably in the vacation, observed that

“in habeas corpus proceedings the Court

has to consider the legality of the detention

on the date of the hearing.” Of these three

views taken by the Court at different times,

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the second appears to be more in

consonance with the law and practice in

England and may be taken as having

received the largest measure of approval in

India, though the third view also cannot be

discarded as incorrect, because an inquiry

whether the detention is legal or not at the

date of hearing of the application for habeas

corpus would be quite relevant, for the

simple reason that if on that date the

detention is legal, the Court cannot order

release of the person detained by issuing a

writ of habeas corpus . But, for the purpose

of the present case, it is immaterial which of

these three views is accepted as correct, for

it is clear that, whichever be the correct

view, the earliest date with reference to

which the legality of detention may be

examined is the date of filing of the

application for habeas corpus and the Court

is not, to quote the words of Mr. Justice

Dua in AIR 1971 SC 2197 “concerned with a

date prior to the initiation of the

proceedings for a writ of habeas corpus”.”

(emphasis supplied)

After so stating, the Bench opined that for adjudication

in the said case, it was immaterial which of the three views

was accepted as correct but eventually referred to paragraph 7

in the case of B.R. Rao (supra) wherein the Court had

expressed the view in the following manner: -

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“….in habeas corpus proceedings the court is

to have regard to the legality or otherwise of

the detention at the time of the return and not

with reference to the institution of the

proceedings.”

Eventually, the Bench ruled thus: -

“The production of the petitioner before the

Special Judge, Vizakhapatnam, could not,

therefore, be said to be illegal and his

subsequent detention in the Central Jail,

Vizakhapatnam, pursuant to the orders made

by the Special Judge, Vizakhapatnam, pending

trial must be held to be valid. This Court

pointed out in AIR 1971 SC 2197 that a writ of

habeas corpus cannot be granted “where a

person is committed to Jail custody by a

competent court by an order which prima facie

does not appear to be without jurisdiction or

wholly illegal”.”

21.The principle laid down in Kanu Sanyal (supra), thus, is

that any infirmity in the detention of the petitioner at the

initial stage cannot invalidate the subsequent detention and

the same has to be judged on its own merits.

22.At this juncture, we may profitably refer to the

Constitution Bench decision in Sanjay Dutt v. State

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through C.B.I., Bombay (II)

12

wherein it has been opined

thus: -

“It is settled by Constitution Bench decisions

that a petition seeking the writ of habeas

corpus on the ground of absence of a valid

order of remand or detention of the accused,

has to be dismissed, if on the date of return of

the rule, the custody or detention is on the

basis of a valid order.”

23. Keeping in view the aforesaid concepts with regard to the

writ of habeas corpus, especially pertaining to an order passed

by the learned Magistrate at the time of production of the

accused, it is necessary to advert to the schematic postulates

under the Code relating to remand. There are two provisions

in the Code which provide for remand, i.e., Sections 167 and

309. The Magistrate has the authority under Section 167(2) of

the Code to direct for detention of the accused in such

custody, i.e., police or judicial, if he thinks that further

detention is necessary.

24.The act of directing remand of an accused is

fundamentally a judicial function. The Magistrate does not act

12

(1994) 5 SCC 410

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in executive capacity while ordering the detention of an

accused. While exercising this judicial act, it is obligatory on

the part of the Magistrate to satisfy himself whether the

materials placed before him justify such a remand or, to put it

differently, whether there exist reasonable grounds to commit

the accused to custody and extend his remand. The purpose

of remand as postulated under Section 167 is that

investigation cannot be completed within 24 hours. It enables

the Magistrate to see that the remand is really necessary. This

requires the investigating agency to send the case diary along

with the remand report so that the Magistrate can appreciate

the factual scenario and apply his mind whether there is a

warrant for police remand or justification for judicial remand

or there is no need for any remand at all. It is obligatory on

the part of the Magistrate to apply his mind and not to pass an

order of remand automatically or in a mechanical manner. It

is apt to note that in Madhu Limaye (supra), it has been

stated that once it is shown that the arrests made by the

police officers were illegal, it was necessary for the State to

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establish that at the stage of remand, the Magistrate directed

detention in jail custody after applying his mind to all relevant

matters.

25.In Central Bureau of Investigation, Special

Investigation Cell-I, New Delhi v. Anupam J. Kulkarni

13

, it

has been stated that where an accused is placed in police

custody for the maximum period of fifteen days allowed under

law either pursuant to a single order of remand or more than

one order, when the remand is restricted on each occasion to a

lesser number of days, the further detention of the accused, if

warranted, has to be necessarily to judicial custody and not

otherwise. Thus, the exercise of jurisdiction clearly shows that

the Magistrate performs a judicial act.

26.Presently, we shall advert to the concept of investigation.

The term “investigation” has been defined in Section 2(h) of the

Code. It reads as follows: -

“Investigation” includes all the proceedings

under this Code for the collection of evidence

conducted by a police officer or by any person

13

AIR 1992 SC 1768

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(other than a Magistrate) who is authorised by

a Magistrate in this behalf;”

27.A three-Judge Bench in H.N. Rishbud and another v.

State of Delhi

14

, while dealing with “investigation”, has stated

that under the Code, investigation consists generally of the

following steps: (1) Proceeding to the spot, (2) Ascertainment of

the facts and circumstances of the case, (3) Discovery and

arrest of the suspected offender, (4) Collection of evidence

relating to the commission of the offence which may consist of

(a) the examination of various persons (including the accused)

and the reduction of their statements into writing, if the officer

thinks fit, (b) the search of places or seizure of things

considered necessary for the investigation and to be produced

at the trial, and (5) Formation of the opinion as to whether on

the material collected, there is a case to place the accused

before a Magistrate for trial and, if so, taking the necessary

steps for the same by the filing of a charge-sheet under

Section 173.

14

AIR 1955 SC 196

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28.In Adri Dharan Das v. State of West Bengal

15

, it has

been opined that arrest is a part of the process of investigation

intended to secure several purposes. The accused may have

to be questioned in detail regarding the various facets of

motive, preparation, commission and aftermath of the crime

and the connection of other persons, if any, in the crime.

29.In Niranjan Singh v. State of Uttar Pradesh

16

, it has

been laid down that investigation is not an inquiry or trial

before the court and that is why the legislature did not

contemplate any irregularity in investigation as of sufficient

importance to vitiate or otherwise form any infirmity in the

inquiry or trial.

30.In S.N. Sharma v. Bipen Kumar Tiwari

17

, it has been

observed that the power of police to investigate is independent

of any control by the Magistrate.

31.In State of Bihar v. J.A.C. Saldanha and others

18

, it

has been observed that there is a clear cut and well

15

AIR 2005 SC 1057

16

AIR 1957 SC 142

17

(1970) 1 SCC 653

18

(1980) 1 SCC 554

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demarcated sphere of activity in the field of crime detection

and crime punishment and further investigation of an offence

is the field exclusively reserved for the executive in the police

department.

32.Coming to the case at hand, it is evincible that the arrest

had taken place a day prior to the passing of order of stay. It

is also manifest that the order of remand was passed by the

learned Magistrate after considering the allegations in the FIR

but not in a routine or mechanical manner. It has to be borne

in mind that the effect of the order of the High Court regarding

stay of investigation could only have bearing on the action of

the investigating agency. The order of remand which is a

judicial act, as we perceive, does not suffer from any infirmity.

The only ground that was highlighted before the High Court as

well as before this Court is that once there is stay of

investigation, the order of remand is sensitively susceptible

and, therefore, as a logical corollary, the detention is

unsustainable. It is worthy to note that the investigation had

already commenced and as a resultant consequence, the

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accused was arrested. Thus, we are disposed to think that the

order of remand cannot be regarded as untenable in law. It is

well accepted principle that a writ of habeas corpus is not to

be entertained when a person is committed to judicial custody

or police custody by the competent court by an order which

prima facie does not appear to be without jurisdiction or

passed in an absolutely mechanical manner or wholly illegal.

As has been stated in the cases of B.R. Rao (supra) and Kanu

Sanyal (supra), the court is required to scrutinize the legality

or otherwise of the order of detention which has been passed.

Unless the court is satisfied that a person has been committed

to jail custody by virtue of an order that suffers from the vice

of lack of jurisdiction or absolute illegality, a writ of habeas

corpus cannot be granted. It is apposite to note that the

investigation, as has been dealt with in various authorities of

this Court, is neither an inquiry nor trial. It is within the

exclusive domain of the police to investigate and is

independent of any control by the Magistrate. The sphere of

activity is clear cut and well demarcated. Thus viewed, we do

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not perceive any error in the order passed by the High Court

refusing to grant a writ of habeas corpus as the detention by

virtue of the judicial order passed by the Magistrate

remanding the accused to custody is valid in law.

33.Though we have not interfered with the order passed by

the High Court, yet we would request the High Court to

dispose of the Criminal Miscellaneous Application No. 10303

of 2012 within a period of six weeks. Liberty is granted to the

appellant to move the appropriate court for grant of bail, if so

advised.

34.Consequently, with the aforesaid observations mentioned

hereinabove, the appeal, being sans merit, stands dismissed.

……………………………… .J.

[K. S. Radhakrishnan]

……………………………… .J.

[Dipak Misra]

New Delhi;

September 28, 2012.